Wendy's sues UDF over Frosty trademark

Saturday

Jun 22, 2013 at 12:01 AMJun 22, 2013 at 10:01 AM

Wendy's has accused United Dairy Farmers of infringing on its Frosty trademark, as well as the distinctive red and yellow colors on the cups in which the Dublin-based fast-food company's frozen dairy desserts have been served since 1969.

Mary Vanac, The Columbus Dispatch

Wendy’s has accused United Dairy Farmers of infringing on its Frosty trademark, as well as the distinctive red and yellow colors on the cups in which the Dublin-based fast-food company’s frozen dairy desserts have been served since 1969.

The Cincinnati-area maker and distributor of Homemade brand ice cream and other dairy products has been marketing chocolate and vanilla shakes as “Frosties” and “Frosty Malts” in grocery stores and its own UDF convenience stores since 2005, according to its website.

Wendy’s called the UDF products “a complete knock-off” of its Frosty dessert in the lawsuit, filed yesterday in federal court in Columbus.

Brad Lindner, president and CEO of United Dairy Farmers, declined to comment on the suit, a spokeswoman said.

“Frosty is one of our original trademark products, dating back to 1969,” said Wendy’s spokesman Denny Lynch. “We are taking the necessary steps to protect this iconic brand and to avoid the inevitable confusion by consumers.”

Wendy’s Frosty — a cross between a milkshake and soft-serve ice cream — was one of the company’s first five menu items, according to the suit.

The Frosty trademark is famous, and sales of Frosty products “have exceeded tens of millions of dollars,” Wendy’s said in its filing.

Since then, the company has “built up substantial value and goodwill in the Frosty trademark” and colors through advertising and promotions, it said.

The Frosty product line has grown over the years to include both the original chocolate and vanilla varieties and Frosty floats and sundaes.

Wendy’s says UDF’s use of the Frosty name and colors “infringes and dilutes” its trademark and concept.

The lawsuit asks the court to stop UDF’s sales of its products and to require the company to destroy their packaging.